The transition period during which UK nationals are generally treated under EU law as citizens of other member states expires on 31 December 2020. This raises more and more questions and doubts about the legality of stay of UK citizens and their family members, both those already residing in Poland and those still planning their arrival.
UK citizens and their family members living in Poland
Under the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (L.2020.29.7), the right of citizens of the UK and their family members to reside in Poland will in principle remain unchanged, if:
- They exercised their right to reside in Poland in accordance with EU law before the end of the transition period, and
- After the end of the transition period, they continue to reside in Polish territory.
Under Poland’s national law, this issue is covered by the draft Act Amending the Act on Entering the Territory of the Republic of Poland, Residence and Departure from This Territory by Nationals of Member States of the European Union and Their Family Members and Certain Other Acts. This bill is currently at the stage of inter-ministerial consultations.
According to the bill, existing documents legalising the stay of UK nationals and their family members will remain valid for the period for which they were issued, but not longer than 31 December 2021.
From 1 January 2021 to 1 January 2022, UK citizens and their family members will be able to submit applications for new documents legalising their stay to the office of the province where they are residing in Poland. The new documents will be:
- Certificates of registration of residence
- Documents confirming the right to reside permanently—for UK nationals
- Residence cards (including permanent residence cards)—for their family members.
The newly issued residence documents will contain the notation “Art. 50 TEU, Art. 18(4) of the Withdrawal Agreement.”
UK citizens and their family members who do not obtain a residence document by the end of the transition period, or with respect to whom proceedings for issuance of such a document have not been initiated, but who nevertheless enter the territory of Poland before the end of the transition period, should submit an application for issuance of the relevant document with the annotation “Art. 50 TEU, Art. 18(4) of the Withdrawal Agreement” immediately after 1 January 2021.
Additionally, the withdrawal agreement provides for the possibility for UK nationals and their family members to acquire the right to reside permanently after 5 years of legal and continuous residence in a member state. The period required to acquire this right includes periods both before and after the end of the transition period.
UK citizens entering Poland after the end of the transition period
The general rules on entering and residing in Poland relating to third-country nationals will apply to UK nationals and their family members who arrive to Poland after the end of the transition period.
UK citizens will be exempt from the visa requirement for short stays in the Schengen area. In accordance with Regulation (EU) 2018/1806, the short-term stay shall not exceed 90 days in any 180-day period.
Whether an analogous exemption will also apply to their non-EU family members depends on EU regulations and whether the person’s country of origin is included in the list of countries covered by the visa-free regime (annex to Regulation (EU) 2018/1806).
At the same time, UK nationals and their family members will have to fulfil other entry conditions. Among other requirements, they will have to hold valid travel documents (issued within the last 10 years and valid at least three months beyond the planned date of departure from member states) and will be subject to border control procedures carried out by Poland’s Border Guard. Their passports will also be stamped when arriving in and leaving Poland, making it possible to calculate the 90-day stay under the visa-free regime.
Otherwise, UK nationals and their family members will be covered by the Foreigners Act. Therefore, for long-term stays, they will be able to apply for a national visa or a temporary or permanent residence permit. To be able to work in Poland, they will probably need a work permit or other document entitling them to work (e.g. a temporary work and residence permit) in accordance with the Act on Promotion of Employment and Labour Market Institutions.
Magdalena Świtajska, attorney-at-law, Employment practice, Common Law Desk, Wardyński & Partners
Aleksandra Wójcik, Employment practice, Wardyński & Partners